Newcomb v. Wallace

Chapman, C. J. The plaintiff Newcomb is but a nominal party, and has allowed Farrington to bring the action in his name for his own benefit. Newcomb purchased the land for the benefit of Farrington, and conveyed it to him as part of the same transaction with the purchase. The deed was made August 16, 1870, and the land was subject to such taxes as would be assessed as of the first of the preceding May, but they would not be actually assessed till the next October. Of course the parties would not know precisely what they would amount to. The vendor desired to relieve himself from all liability in respect to them, by an exception in his covenant against incumbrances ; but as Farrington desired to have a clear covenant, he agreed to pay the taxes when they should be assessed, and indemnify the defendant against them. The sale of the land was a good consideration for the promise to make the payment. Basford v. Pearson, 9 Allen, 387, 390. The taxes were assessed in October, and Farrington paid them in November. This payment must be regarded as having been made in performance of the promise, which was made in good faith. There can be no objection to the proof of these facts, which show not only the promise but its actual performance. The covenant with Newcomb against incumbrance has thus been performed in substance by the procurement of the defendant, and the plaintiff cannot have a claim for more than nominal damages, either for his own benefit or for the benefit of Farrington. Judgment for the plaintiff for nominal damages